Just reported by VoterAction.org, the great group led by attorney Lowell Finley, is that a US District Court Judge has sent the lawsuit, Holder v. McPherson et. al. back to state court. This is a victory for the voters of the state of California and is the first giant step in stopping the use of Diebold touch-screen voting machines in the state. VoterAction's press release follows in full...

California Voters' Suit to Block Electronic Voting Machines Remanded Back to State Court

July 18, 2006

Oakland, CA --- As a first-step to victory in a California voters’ lawsuit against Secretary of State Bruce McPherson to block the State’s use of Diebold touch-screen electronic voting systems – which have a well-documented history of security, reliability, and verifiability problems --- the United States District Court in Oakland today entered an order remanding the voter plaintiffs' lawsuit to the California Superior Court in San Francisco, where it was originally filed on March 21, 2006. The Court’s decision in Holder v. McPherson, et al. rejected an effort by California Attorney Bill Lockyer, Secretary of State McPherson’s attorney, to transfer the case from state to federal court.

The Court's decision was announced today by the law firm of Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco and the Law Offices of Lowell Finley in Berkeley, co-counsels for the California voter plaintiffs, and Voter Action, which is supporting the legal action in California. Voter Action is also supporting similar cases in Colorado, Arizona, and New York. In response to the California voters’ lawsuit, elections officials in seven California counties have signed affidavits that they will not use Diebold touch screens for the November elections. Twelve California counties remain in the suit, as well as Secretary of State McPherson.
In her written order granting the plaintiffs’ motion to remand their lawsuit to California Superior Court in San Francisco, Judge Saundra Brown Armstrong of the US District Court for Northern California concluded that the Attorney General’s attempt to move the case to federal court was "legally improper".

"The Court’s decision is a victory for California voters, who need to know if their right to have their votes recorded and counted accurately will be protected, and local elections officials who will need time to make alternative arrangements if the Court agrees that the only way to protect those rights is to prohibit use of Diebold touch-screen voting machines,” said Jason Takenouchi, an attorney for the plaintiffs and an associate at of Howard, Rice, Nemerovski, Canady, Falk & Rabkin.

"Had the Secretary of State and Attorney General succeeded, the courts of their own state would have been stripped of their power to decide whether California’s constitution and election laws prohibit use of Diebold touch-screen electronic voting machines, which are vulnerable to hacking, losing and switching votes, and are difficult if not impossible to audit,” said Lowell Finley, co-counsel for the California voter plaintiffs, co-director of Voter Action, and election law expert. "The only thing they gained was months of delay, leaving voters and county elections officials uncertain about what voting equipment they will be using in the November elections”.

"The California voter plaintiffs have a powerful and well-documented challenge to the Secretary of State’s illegal certification of the Diebold touch-screens. The Secretary of State is asleep at the switch, and only the court can prevent a train wreck in the November election,” said Lowell Finley.

"The Secretary of State has abdicated his duty, as it is impossible to make electronic voting systems acceptably transparent, accurate and secure as required by law," said Holly Jacobson, co-director of Voter Action. "Optical -scan paper balloting is a much better, less expensive, and more secure option, which is why it has been selected in New Mexico, Michigan, and hundreds of counties across the country".

Voter Action, www.voteraction.org, is a not for profit organization providing legal, research and logistical support for grassroots efforts to ensure the integrity of elections in the United States. Voter Action supported successful litigation in New Mexico to block purchase and use of the types of voting machines that are most prone to error and most vulnerable to tampering, and is currently supporting similar efforts in Arizona, Colorado, and New York. Voter Action is a project of the International Humanities Center, a 501c3 non-profit organization.

The California AG office represents all State agencies, and citizens, too, and this gets thorny as heck! I've bumped into this problem before when I wanted satisfaction against the Department of Forestry and Fire Protection. I don't understand the nuances of that set up, not versed in administrative law, which seems to be where it's at nowadays, to my utter horror. But, my point was that whatever problem you have with the Democrat AG representing the Republican SoS, it's his duty... and maybe he was looking out for the rest of us too, since it got kicked back, and this is a good thing. Are there fifty words here yet? I'm damn partisan too, but I'm not quite willing to beat up on Lockyear over it. He may have "tried to get the case to the feds" precisely because, somehow, it really was in the best interest of Californians to go there, getting it kicked back, and make the lower court deal appropriately with it. Dunno, but that was my point. AG must represent all State agencies in lawsuits.

Maybe they locked him up expressly to keep us from using him against Haas!!!! Now I know I've used the fifty words.

Now that I've read the entire post, I see they certainly didn't lock him up to prevent him from smacking down Haas... had different scenario in my head.

BUT

If Lockyear does not provide the best defense for his client, even if he hates his guts, he's in very hot water. He can't not use whatever means are available to him in the SoS's defense, even if the Governator were not, probably, breathing down his neck about it, and his client. It is NOT DONE, against Bar Association ethics, taboo.

How excited and enthused is Secretary of State Bruce McPherson on these election shenanigans with the Diebolds??? Oh, Kinky, we have a secretary of state who doesn't want to cooperate!!! Texans have a way of dealing with folk who are slow to take the initiative!!!

The people who read this blog will already know the answer to that question!

There will be a webcast avaliable after the hearing that I will post for anyone interested.

I sent the following message to Mr. Matheson:

The following exerpt from Rolling Stone magazine (you have to read a music magazine these days to find out important facts), talks about open fraud involving HAVA. Isn't it time to stop playing around with this issue get some real verification in our elections, even if we need to go to hand-marked, hand-counted ballots for 2006. Tom Delay was responsible for not allowing the issue to be considered even after both parties signed up. The HAVA act is a disgrace that should be condemed, not followed. Please make sure to do anything possible before 2006!

Thanks!

http://www.rollingstone....republican_jack_abramoff
And now it comes out that Diebold, the notorious voting-machine company, paid some $275,000 to Abramoff's firm, Greenberg Traurig, with the apparent aim of keeping legislation requiring paper trails in the voting process from getting into the Help America Vote Act. Conveniently, Abramoff pal Bob Ney, one of the HAVA architects, blocked every attempt to put paper trails into law, even after the controversial electoral debacles of 2000 and 2004.

Okay, the merits may not have been in his client's or the Governator's best interest to have adjudicated in as timely a fashion as possible, and so my point still stands. Lockyear is ethics-bound, in this case, to piss us off royally. Mayhap State Law will be easier for Plaintiffs to win with than Federal... and certainly CHEAPER.

Just a minute ago found a link to Feingold on Hamdan at KOS on Talk Left, and thought you'd be interested. I am, but I'm allergic to KOS, and so will have to muster the moxie to follow my own link through Talk Left to read it.

I mustered the spit, and it was very simply put... yadda, yadda, yadda... so we oughta censure the bad widdle pwez. Sheesh. ITMFA, Russ! Then got the mettle together to watch the House Armed Services Committee hearing on Hamdan in the C-SPAN video archives. I tried. I really tried, but it felt as if they were holding me down and pouring poison in my ear. My insides were trading places. Couldn't make it through the Chairman's blather. Tried fast forwarding into the testimony, and it got still worse for my poor aching nerves.

So I just had the "satisfying" experience of shutting their damn yaps with one snappy mouse click. Would that I could have shut them up that easily for real.

I'm working to make it more than just hope, but yes, hope is about the size of it as of yet, but the hope is getting more justifiable.

The Feds might have been better for the case, and might not. I'm trying to say only that Lockyear would have tried the removal, almost certainly knowing it would be denied, merely to buy time, which is in his client's interest. That's his job. The merits have nothing to do with the maneuver. Wasting time is their gig. Lockyear surely doesn't like it, but he hasn't got any choice. That was all I was saying.

The idea that his political affiliation ought to bear on his actions is not in accord with the realities he, or any other AG, must face. So, the plaintiffs are gathering optimism from his "loss". We can't really say anything effective about the case, because neither of us has read the pleadings. It may, or may not, be easier to get satisfaction from this suit in Superior Court, but, certainly if it's kicked back to it, there is more room for appeal if things go badly. Look at it that way.

The Court lacks federal question jurisdiction in this case for two reasons. First, each of the causes of action in the Petition is based on state law violations which supply grounds for liability unrelated to HAVA. The Ninth Circuit has held that federal jurisdiction does not lie in such cases because resolution of the claims will not necessarily hinge on interpretation of federal law. Rains v. Criterion Sys., Inc., 80 F.3d 339, 346 (9th Cir. 1996). Second, state causes of action which are premised on violations of HAVA are not sufficient to confer federal question jurisdiction because HAVA contains no private right of action and does not preempt state election laws. Wander v. Kaus, 304 F.3d 856 (9th Cir. 2002).

(link here, PDF). We will know if delay was intended by watching whether or not the remand order is appealed to the 9th Circuit Court of Appeals.

One interesting factor in removal jurisprudence is that a state waives its sovereign immunity when it removes a case to federal court. The plaintiffs must have not considered that to be a big deal.

It is an interesting point that the plaintiffs argue that HAVA provides no private right of action.

That has certainly not been a universally held viewpoint:

One expert says it would be ”extraordinary” if private citizens could not sue to enforce voting rights under HAVA.

”If one is serious about enforcing civil rights and voting rights you would have a private right of action, and it's just deeply irresponsible to argue that the people who are the most affected by these laws don't have the right to come into court and see them enforced,” says Laughlin McDonald, director of the Voting Rights Project at the American Civil Liberties Union (ACLU).

It is also interesting that the plaintiffs are parroting what the regime has been arguing for years:

Lawyers in the office of Attorney General John Ashcroft have been arguing in various court cases in recent weeks that private citizens have no right to sue to enforce sections of the Help American Vote Act (HAVA), which was passed after the controversial 2000 election fiasco.
...
The Los Angeles Times reported last week that lawyers for Ashcroft argued in three court cases in late October that only the Justice Department can sue to enforce the provisions in HAVA.

For Dredd: I'm not a lawyer. But what I'm reading about current rulings suggests that the Supreme Court in 2000 acted improperly by interfering with the Florida Supreme Court. Am I misreading the situation? Is this not a federalism question?

Suppose the 2008 presidential election becomes a repeat of 2000 and 2004. Hair-breadth close, with claims of fraud on both sides. Enough electoral votes are in dispute to determine the outcome. Nobody has conceded, and the courts in several states are ruling in favor of recounts, as Florida did in 2000. Will the SCOTUS again decide the issue? Aren't we entitled to know if the Electoral College reserves for states the right to determine election outcomes, as we always thought until the Rehnquist court decided otherwise?

It's not too early to put the germ of the idea of impeachment of Supreme Court justices in the back of our minds.

The December 2000 decision not only interfered with Florida Judicial system and the Florida counting standards which were reasonable according to the Florida Supreme Court, but disenfranchised thousands of voters which is likely an impeachable offense.

Your observation on Bush v Gore is the most prevalent in legal scholar circles. And it is my view as well. I think they descended into politics in what was a state right, and they committed fornication .

However the case at hand concerns removal jurisdiction, which is a narrow band of jurisprudence where cases filed in state court can be removed to the federal court, if, based upon the allegations in the complaint, there is a "federal question".

A "federal question" is one that means the case could have been filed in the federal district court in the first place. Federal courts do not have original jurisdiction of state law issues, but can decide those issues if a federal question is present in the complaint and the case is "removed" to federal court.

As I point out in my post #17, Lockyer (thanks Arry) removed it to federal court.

That is strange in at least one aspect ... the state gives up its inherent sovereign immunity when it does that. Which can weaken their defenses some.

Another strange anamoly is that the plaintiffs, ostensibly voting rights afficionados, argue that HAVA does not give a "private right of action" (you or I or any voter can sue), which as I also pointed out in post #8, is an idea Ashcroft came up with, and one that many scholars disagree with.